- The surprise retirement of U.S. Supreme Court Justice Anthony Kennedy has sent shockwaves through the political world, and has the energy sector digging into the potential implications of a new, and likely more conservative, justice on the court.
- Kennedy was the swing vote in many key decisions, but for the energy industry, the most impactful was his vote in Massachusetts v. EPA, which concluded the U.S. Environmental Protection Agency could regulate carbon dioxide and other greenhouse gases.
- The implications of another justice nominated by President Trump could run for decades. True to his campaign promise, his administration has been working to roll back a wide swath of regulations. Observers say a more conservative judge could help reinforce current limits the Administration is placing on EPA and other federal agencies.
Kennedy's departure sets up an intense battle in the Senate, where Democrats remain angry Mitch McConnell refused to consider Obama nominee Merrick Garland in 2016. With the stakes as high as they are, environmental groups are bracing for a fight.
Earthjustice President Trip Van Noppen issued a statement saying the group and movement, are in for "the fight of our lives."
The Trump administration has been working to roll back Obama-era environmental protections, and in some instances the cases are likely to wind up before the Supreme Court. Environmental observers say the Clean Water Act is likely to come under fire, including the Waters of the U.S. rule — an Obama era regulation that sought to clarify EPA's jurisdiction over U.S. waterways, but has since been suspended and could wind up before the Supreme Court.
A number of Clean Air Act cases could also come before the Supreme Court in the next few years, though observers don't expect the court to overturn its Massachusetts v. EPA decision. The Trump Administration, so far, has not decided to undo EPA's endangerment finding, which laid the groundwork for its regulation of greenhouse gases, ultimately affirmed by Mass. v. EPA.
However, a more conservative judge is likely to help limit government oversight and the role of the EPA. Democrats are gearing up to attempt to block any nominee Trump brings to the Senate, though they would need at least one Republican to join their cause. The idea is to force the confirmation until after the midterms — if Democrats can retake the Senate, they may be able to force a more liberal judge to be nominated.